Indigenous Governance And
Accountability

Donna Hall, Principal, Woodward Law Office

Governance
is a core function undertaken for only one reason, to manage a group in an
efficient manner which will help achieve the group's goals.It is the business of conducting the policy actions and
affairs of a group, with the authority or mandate of that group.The principle can apply equally to Maori, or to the State, to commercial
corporations, to incorporated societies or any other body.

Developing
a constitutional framework takes this one step further. Constitution is defined
in the dictionary as a body of fundamental rules.

The
challenge of a constitutional framework for Maori is four fold,

∑the balancing of power in Maori organisations;

∑the formation of Government structures;

∑judicial development; and

∑the development of national structures.

In
developing this theme I propose to draw on the experience I have acquired over
the years in working with Maori groups at all levels.So we have:

The Tribes: The Hapu, guarding their autonomy and independence.
Marae based.

The
Super Tribes: Iwi, trying to maintain the
consent and support of the Hapu & their members.

Mokai
Kainga: A modern Maori community operating here
in Wellington, but not an UMA

Ratana:
A movement, a following; essentially pan tribal and national in overview.

Federation
of Maori Authorities: The land owning elite of Maoridom.

Maori
Women's Welfare League: Pan-Tribal and National in overview, membership

restricted to women.

New
Zealand Maori Council: Pan-Tribal and national
in overview. Needs a facelift and

a bodyreshape. Has two
strengths,

a)legislation, and

b)solid leadership

Maori
Congress:Loose
collection of the tribes at both iwi and hapu level.

A wonderful vision, but what went wrong.

All
of these groupings seek to achieve recognition for the Maori people who support
them, and belong to their organisations.The
trouble comes when these organisation's constituent parts start to collide
internally or worse, they bang into each other externally and fight.Which brings me to the need for a balancing of power in Maori
organisations at all levels.

In
considering structures for Maori governance I think there are at least three
imperatives to balance.

1.The commercial reality: By this I mean that it may be necessary to have
persons to manage or develop group assets who have competent commercial skills
but who are required to be neutral as to the groupís broad policies.

2.The cultural reality. By this I mean that it is necessary to have persons
adequately skilled in Maori ethics and values to develop appropriate Maori
policy for the group.

3.The social reality. By this I mean that the development of people is as
important as the development of capital and that this must be seen in the
context that many Maori are at risk.

These
three imperatives compete in all levels and are illustrated with four examples.

1.When accountants, lawyers, or corporate warriors control the direction of
a tribe or other Maori group, simply by their decisions or their greater ability
to apply money in particular ways, so as to achieve one or other end, then there
is an imbalance.The commercial imperative has taken dominance over the
cultural reality.The tribe is at
risk of being cloned into a corporate starship, to which it may be unsuited.

2.When tribal or other group representatives without commercial experience
end up controlling tribal assets then you have another form of risk, that is the
asset are at risked.Here the
cultural imperative has taken dominance over commercial realities.

3.When tribal representatives and corporate warriors combine to develop
tribal assets but forget the people who are at risk, the structure becomes
divorced from the people.Here economic and cultural imperatives have taken dominance
over social realities.

4.When all the money is spent on the immediate needs of the people, then
the corporate asset is at risk for future generations.Here the social imperative has taken dominance. I consider that
traditional structures must be re-fashioned to deal with these realities and we
may take advantage of western models and experience when we do this.From my own experience I can say that where there is clearly room for
conflict, I now advocate there should be a severance of powers so that one may
balance and check the other.

In
brief,

1.The functions of commercial operators should be defined so that they have
freedom to operate in their own sphere without interference from marae grown
economists.By the same token these commercial operators must be
restrained from moving into prescribed areas that require determination by
representatives of the beneficial groups.

2.Conversely the role of representatives of the group should be defined so
that they do not intervene in commercial decision making but do take control of
policy formulation.The body for
doing this may be called the runanga, but many other names would do. I will use
runanga for now.

3.The runanga should have a social arm for the development of the people.

4.While the runanga is like a House of Representatives the runanga should
reserve a place for representatives of both the commercial and social sectors to
attend.These should put arguments
to the runanga, on their respective views before the runanga determines
developmental policy.

The
formation of government structures:

The
traditional structure as I see it, was that the effective unit for day to day
operations was the hapu, a group of a hundred or so closely related persons
having one or more marae.Each was
autonomous but regularly acted in concert with one or more other hapu in the
area.

In
the 19th and 20th centuries there were various efforts to develop larger
regional and national structures for integrated operations.

There
is nothing to stop the development of larger institutions today, as with the iwi
runanga, though I suggest that the structure should reflect the underlying
traditional ethic.That ethic, as I
see it, is that the autonomy and authority of the base unit, the family or the
hapu, should be respected and upheld.Put
another way, the power is not with the runanga but with the people.It should be remembered too that the runanga is never the tribe.The tribe is the tribe.The
runanga is merely a place where tribal thinking can be developed.

What
this means in practice is that efforts should be made to devolve funding to
marae or local cells to undertake their own operations.The thought is that a tribe works best if the base is solid and as much
work as possible is done at a local level. I should imagine that the same
principle will apply in urban situations.

This
can be put conceptually.In western
society power resides in the central agency of the national government, which
distributes power from the centre.The
power of the people is represented only in elections at prescribed times.In indigenous societies power is represented in local bands or hapu, and
anything above that is really some form of federation with no greater power than
that which the local and autonomous bodies may subscribe to from time to time.

I
think that today, scales of economy and political realities require a more
regular centralist agency, whether it be a iwi runanga or an urban authority,
with an asset base of its own. I do not hold to a view that there can only be
one structure particularly if that ends up being forced to fit some purist
model.

What
I would promote is devolution to local cells to the extent that is practicable.
I promote that not only because it is consistent with our traditions, but also
for the practical reason that tribal strength is not actually in money but in
people.It is necessary to look to
where the people are actually at and to encourage them to develop their own
initiatives, suited to their own circumstances.

Under
the system that I would promote, the fragmentation of hapu is not a problem.The more the hapu or operating cells, the greater the tribal strength.

There
are a number of ways that a centralist runanga can be established.It may provide for a kahui ariki.It
may have a kaumatua body with a special system for appointment.It may have a body of expert advisers.As I have said there should be a place for commercial and social
representatives to express concerns before decisions are made. I would expect
this body to appoint the commercial asset managers and to prescribe those
matters in which it may act independently and those matters where it should seek
policy directions from the runanga.It
would need to establish the accountability of the commercial arm to the runanga
in explicit terms.

I
would expect the runanga to have a team of social advisers.It would also have its own executive.But fundamentally it would be comprised of representatives of the various
hapu. I do not see that the runanga need represent only one tribe.In some districts it could be multi tribal.It could be a runanga for all the tribes of a particular district.

However,
I stress the need for a constitution that sets out the basic principles and
beliefs.It should be required that
all powers in the constitution are to be read in terms of those principles and
beliefs.It might acknowledge for
example the principle of hapu autonomy and the desirability that the runanga
should not become a controlling agency but a facilitator of local development.

Decisions
may then be based against the achievement of those principles and beliefs.

This
structure runs counter to the idea of a democratic decision by all persons
enrolled on a tribal roll.It means
that decision-making is restricted to those who actually participate at the
local or marae level.

Formal
structures for local or hapu runanga could also be developed if the local people
wished.It may have its own
commercial and social arms.Representation
might follow the more traditional kaumatua system.Under that system the hapu defines the principle family lines and each of
the families appoints its own representative.Of course the actual structure will depend upon the
circumstances of each particular case.These
are just ideas for now but I do think, that if a written founding document of
some sort is developed, then it must begin by defining the values and beliefs to
which the hapu subscribe, so that future decisions can be debated in terms of
those criteria.

Judicial
Development:

Contrary
to popular belief, I am not opposed to the retention of the Maori Land Court as
such.What I am opposed to are some
of its current practises. I think that the Maori Land Court has become overly
fond of the sound of its own voice and tinted about the brilliance of its own
point of view.It has become casual
with regard to the wishes of the people.Or
it intervenes when it should not in commercial decision making.Or it manipulates the people.Or
it takes the power from the people.Or
in seeking to find answers it fails to maintain a truly neutral and judicial
role.By that, I mean, that the
court often talks to some of the people (other than in open court) and then has
a fixed mind on the matter. I also think that sometimes the court treats Maori
like children.Or the court is insufficiently informed of tribal dynamics or
of cultural development objectives.Such
training as the current court has, stems from the law of precedent and comes
straight out of Westminster.In the
area of custom, the Maori Land Court has no greater experience then anyone else.A perusal of the section 30 decisions from Te Ture Whenua Act, on mandate
and representation are proof of the view that this current court knows little
about custom.

An
illustration, on the appointment of managers or trustees of tribal assets the
court has placed weight on appointing only those with commercial expertise and
then sacking them if the court thinks they have done something that it doesn't
agree with.It has not placed equal
weight on ensuring that these managers are accountable to the people.By that I mean that the court has not considered the structure required
to ensure that the people are represented in a body of their own, that that body
should appoint the commercial managers, that the commercial managers should be
answerable to the body that appoints them, and that the court should be a place
of last recourse.

The
effect of what the court does is to allow the commercial managers to take
control of the tribe, and to determine important tribal policy by its allocation
of money.

I
am presently dealing with a case where mandate and representation is in dispute.One party was formed by the people of the hapu coming together as a
runanga.This runanga clearly has
people support.In competition with
the runanga, for mandate to oversee and distribute fisheries assets is a trust
established by the Maori Land Court.Two
individuals were appointed to manage the trust on behalf of the hapu and neither
of them belong to the hapu.While
they may have whakapapa links to the hapu they do not attend hapu tangi or marae
clean ups or important tribal meetings.Little
wonder that hapu see these two as outsiders.Yet the Maori Land Court can merrily make these appointments with scant
regard to the wishes of the people or the mana of the hapu.

Having set out my views of the capacity and disciplines operating within the
Maori Land Court I go on to say that we should not throw the baby out with the
bath water.There is a very
important role for the Maori Land Court.Where
it is weak it can be changed.Early
retirements can and ought to be encouraged.If we can get beyond the immediate lack of discipline and have that
bolstered, then we can look at the very good work that has been done for example
in the area of establishing Maori land trusts and incorporation's, and of
supervising them and the Maori Trust Boards.

I
also consider that the trusts incorporation and trust boards did a great job,
not just in managing their assets, but in helping Maori communities generally.In some districts, there is associated with nearly every marae, a
particular land trust or incorporation that has been its shadowy benefactor.We may observe then, that these bodies have not been simply into making
money.Associated with each of them
was a wider community interest or social factor.That is the essence of Maori structure that is worth preserving.

Today,
the managers of those bodies are also likely to be the main source for expertise
in managing tribal assets and handling tribal administration.They have competence in understanding their wider trustee
responsibilities as well.

But to
get back to my point, I think that the Maori Land Courtsí role should be
expanded. I promote this scenario.The
first is that facilitation mediation structures should be provided for the tribe
to develop its own judicial capacity for the settlement of disputes.However I believe that facilitation mediation only works if everyone
knows that the matter could end up before a judicial body if agreement cannot be
reached. I also think that facilitation mediation is best where the parties are
roughly equally balanced.It may
not work for example, if a minority claims to have been prejudiced by runanga
decisions.The runanga itself may be too strong, or may have the money
to be able to put the objectors down.Also,
if commercial managers or other managers of funds are alleged to have done
wrong, justice may call not for mediation, but the application of strict law.

I
suggest the persons with a proper complaint about tribal management or fund
administration should have easy access to the Maori Land Court.However, before the court could intervene, the court would
need to be satisfied that the complaint is not simply mischievous, that
facilitation mediation is either inappropriate or has been tried and not worked.As matters stand, the cost to individuals of proceeding before the
ordinary courts is exorbitant and all the power is with those who hold the money
and the assets.By legal processes
in the ordinary courts, these are able to thwart legitimate complaints and to
lock out entitled beneficiaries.

For
this purpose the courts jurisdiction would need to be expanded.In making decisions however, the court should be obliged to
take into account the principles that the people themselves have settled upon in
any written constitution, unless those principles are clearly contrary to
justice.

Another
option is legislation that enables runanga to elect the judge or judges of the
Maori Land Court, who for any given period of years, may hear disputes arising
from the administration of tribal assets and affairs.This enables Maori to have a say on which judges appear to them to be
satisfying Maori criteria.It will
begin the process of judicial accountability to Maori.They should also have the power to appoint assessors to sit with the
tribe.Again this is a decision for
the runanga of the people.It is not a decision for the managers of the money.

The
Development Of National Structures.

I
consider there is a need for a national Maori organisation that is
representative of tribal and urban organisations.

First
I should say that I do not believe Maori should be too purist in accepting just
the tribal ways.If there are
organisations that are representative of modern communities of interest, then
these too should be provided for. I take as my guide that tradition does not
reside in tribes alone, but in the maintenance of Maori values, and an important
Maori value is to be inclusive of all the people.

If
people relate best to new societies in which they live, then these should be
recognized.It should not be
forgotten too that urban groups today are much more than a disparate collection
of individuals.They are more
regularly a collection of families covering three generations, like most other
families, and which have developed common perceptions, values and visions.

I
think we should avoid the South African experience where urban and tribal native
societies became locked into bitter competition.The better course is to have all our people working together, or at least
cooperatively, one supporting the other.

The
test of allegiance is not actually based on residence in my view.The better test is to ask of the individual, which group is likely to
farewell you when you die? I do not accept that Maori have been incapable of
achieving a national coherence in the past and therefore are unlikely to achieve
it now.Any lack of success for
national Maori bodies has been due, in my view, to a lack of adequate resources
to communicate adequately with their constituents.

I
think a national Maori organisation is important provided we get the principles
right.It should be there to
facilitate and not to govern.It
should not deny the district runanga the right of direct lobby but should
recognise the principle of local autonomy.

A
national Maori organisation needs its own funding base but should not be in a
position where it is devolving money to the tribes.The funding should be just that which is sufficient to manage its own
operations.

But
I think there are many areas where Maori should be developing common policy and
vetting general policy that impacts on us.In addition, in many situations the Crown should have to interface with
this body and not be able to divide and rule.

A
national body may be thought of as the ultimate federation of all Maori.To that end it should be inclusive and respectful of all Maori groups, no
matter how defined.It should
recognise other national Maori organisations including those of the churches. I
will come back to this point if there is more time.

Determining Representation

How
does one determine the appropriate body for a district?How does one prevent fragmentation with new bodies arising and asserting
a right of recognition?The second
question is more easily answered than the first. I support the former trend for
district runanga or other organisations to be recognised by statute. I do no
place much weight on the thought that this diminishes rangatiratanga.The statute does not mean the Crown is establishing the body.The statute means that the Crown is binding itself to recognise that body
as the appropriate body for it to deal with regarding matters in the area.

What
happens when there are several bodies in an area, they cannot agree, and the
Crown cannot know which one it should provide for by statute?That is a large question but at this stage I would probably
support an arrangement along the following lines. I suggest that the National
Maori Congress, NZ Maori Council, Maori Womenís Welfare League, and FOMA
jointly approach government to fund a body to develop criteria for the
recognition of appropriate bodies, for appropriately sized areas where there are
disputes, to make inquiries with regard to particular areas, and to develop some
temporary Maori judicial structure to determine what should be done. I have put
these up as thoughts not as absolutes and goals, to generate discussion.More succinctly, I reserve the right to change my mind.